Citation Nr: 0514297
Decision Date: 05/25/05 Archive Date: 06/01/05
DOCKET NO. 03-26 991 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to service connection for residuals of a shell
fragment wound to the left forearm.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The appellant and his spouse.
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The veteran served on active duty from May 1943 to January
1946. His military records show that he served in the
European Theater of Operations during World War II and was
awarded the Combat Infantryman Badge for participating in
armed combat against enemy forces.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a February 2003 rating decision by the
Cleveland, Ohio, Regional Office (RO) of the Department of
Veterans Affairs (VA), which denied the veteran's claim of
entitlement to service connection for residuals of a shell
fragment wound to the left forearm.
A motion to advance this case on the Board's docket was
granted by the Board on April 14, 2005 for good cause shown.
38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2004).
In view of the discussion below, this appeal is remanded to
the RO via the Appeals Management Center in Washington, D.C.
REMAND
The veteran contends that he sustained a shrapnel wound to
his left forearm approximately in December 1944 while engaged
in combat during the Battle of the Bulge. According to his
statements, his wound was treated at an improvised field
medical aid station and he was immediately returned to
action. He reported that he was recommended for the Purple
Heart Medal, but that he never received this decoration. A
review of his service medical records contain no notation
that he had ever sustained any wounds as a result of combat.
However, his military records clearly establish that he was
awarded the Combat Infantryman Badge in recognition of his
active participation in armed combat.
The veteran reported at an April 2005 videoconference hearing
that he experienced numbness in the area of his left forearm
at the alleged site of his shrapnel wound. A review of the
medical records associated with the veteran's claims file
shows that he was not provided with a VA medical examination
to determine whether he has a disability of his left forearm
that is consistent with residuals of a shrapnel wound to this
area. The case should thus be remanded so that a medical
examination may be scheduled. The examining physician should
be requested to provide an objective nexus opinion addressing
this issue and the examination report should thereafter be
associated with the evidence. See Charles v. Principi, 16
Vet. App. 370 (2002).
A review of the claims file shows that in a November 2004
decision, the RO, inter alia, granted the veteran's claim of
entitlement to service connection for post-traumatic stress
disorder (PTSD) and assigned a 10 percent evaluation for this
psychiatric disorder. The effective date for both the rating
and the award of service connection was March 22, 2004, based
upon the date he filed his original claim for this
disability. Notice of this decision and the veteran's
appellate rights were sent to him in December 2004. In
January 2005, the veteran submitted a notice of disagreement
with respect to that decision. Although the RO sent
correspondence acknowledging receipt of the veteran's notice
of disagreement in March 2005, a statement of the case
addressing this issue was not furnished to the veteran.
Accordingly, a statement of the case addressing the specific
issue of entitlement to an initial evaluation greater than 10
percent for PTSD must be furnished by the RO to the veteran
in response to the timely notice of disagreement. Manlincon
v. West, 12 Vet. App. 238, 240-41 (1999).
Accordingly, this case is remanded for the following actions:
1. The veteran must be scheduled for a
VA medical examination by the
appropriate specialist(s) to determine
the nature and etiology of any soft
tissue, neurological, or orthopedic
disability found with respect to his
left forearm. All tests deemed
appropriate by the examiner must be
performed. All pertinent symptomatology
and findings, to include any evidence of
scar(s), must be reported in detail.
The veteran's claims folder must be
reviewed in conjunction with the
examination. Following the examination,
the VA physician must provide an opinion
as to whether any soft tissue,
neurological, or orthopedic disability
found with respect to his left forearm,
is related to the veteran's military
service, with a rationale for all
opinions provided and answers to the
following question:
Is any soft tissue, neurological,
or orthopedic disability found
with respect to the veteran's
left forearm consistent with the
residuals of an injury of the
type reported by him to have
occurred over 60 years ago?
2. The RO must notify the veteran that
it is his responsibility to report for
the examination and to cooperate in the
development of the claim. The
consequences for failure to report for a
VA examination without good cause may
include denial of the claim.
38 C.F.R. §§ 3.158, 3.655 (2004). In the
event that the veteran does not report
for the aforementioned examinations,
documentation must be obtained which
shows that notice scheduling the
examination was sent to the last known
address. It must also be indicated
whether any notice that was sent was
returned as undeliverable.
3. The RO must provide the veteran and
his representative a statement of the
case as to the issue of entitlement to an
initial evaluation in excess of 10
percent for PTSD from March 22, 2004.
The veteran must be informed that he must
file a timely and adequate substantive
appeal in order to perfect an appeal of
this issue to the Board. See 38 C.F.R.
§§ 20.200, 20.202, 20.302(b) (2004).
Only if a timely substantive appeal is
filed with respect to this issue, subject
to current appellate procedures, should
the case be returned to the Board for
further appellate consideration in this
regard.
4. Thereafter, the claims file must be
reviewed to ensure that all of the
foregoing requested development has been
completed. After undertaking any further
development deemed essential in addition
to that specified above, the claim of
entitlement to service connection for
residuals of shell fragment wound of the
left forearm must be readjudicated. If
the benefit sought on appeal remains
denied, a supplemental statement of the
case should be provided to the veteran
and his representative. After the
veteran and his representative have had
an adequate opportunity to respond, the
appeal must be returned to the Board for
appellate review.
No action is required by the veteran until he receives
further notice; however, he may present additional evidence
or argument while the case is in remand status.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
FINALLY, THE BOARD NOTES THAT THE VETERAN IS 81 YEARS OF AGE.
Hence, this claim must be afforded expeditious treatment by
the RO. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).